March 29, 1996
Terrie Gale Police Attorney Chapel Hill Police Department 828 Airport Road Chapel Hill, NC 27514-2640
Re: Advisory Opinion: Chapel Hill Ordinance Prohibiting the Possession of Open Containers of Malt Beverages without defining the term "Malt Beverages"; N.C.G.S. § 18B-300.
Dear Ms. Gale:
This letter is in response to your request for an Advisory Opinion from this office concerning the validity of the Town of Chapel Hill’s "open container" ordinance. According to your letter, a District Court Judge recently declared this ordinance to be fatally vague because it does not include, within the language of the ordinance itself, a definition of the term "malt beverage." You specifically inquire whether this ordinance must define all terms used within the fourcorners of the ordinance and whether Chapel Hill’s ordinance is valid as currently written. Based upon a careful review of the relevant statutes and case law, it is our opinion that this ordinance is not fatally vague.
In 1995, the General Assembly modified N.C.G.S. § 18B-300(c) to allow a city or county to regulate by way of local ordinance "the possession of open containers of malt beverages and unfortified wine by pedestrians on public streets in that city or county or on property owned or occupied by that city or county …." Like many local governments, the Town of Chapel Hill thereafter enacted an ordinance to prohibit the possession of open containers of such malt beverages and unfortified wines. In particular, Section 3-3 of the Chapel Hill Town Code reads as follows:
Section 3-3. Possession of open containers of malt beverages and unfortified wines on streets, sidewalks, municipal parking lots or any real estate or buildings owned or occupied by the town. It shall be unlawful for any person who is not an occupant of a motor vehicle on any street, sidewalk or alley; or in any municipal parking lot; or on the grounds of any public building of the town; or on any real estate owned or controlled by the town including but not limited to public parks, playgrounds, tot lots, recreational fields, tennis courts, or other athletic fields; or in any of the buildings owned by the town to possess any open container of malt beverage or unfortified wine.
The Chapel Hill Ordinance utilizes the terms "malt beverages" and "unfortified wines" found in
- N.C.G.S.
- § 18B-300(c) and throughout Chapter 18B. The term "malt beverage" is defined by
- N.C.G.S.
- § 18B-101(9) as "beer, lager, malt liquor, ale, porter, and any other brewed or fermented beverage containing at least one-half of one percent (0.5%), and not more than six percent (6%), alcohol by volume". According to N.C.G.S. § 18B-101(15), "unfortified wine" is "wine that has an alcoholic content produced only by natural fermentation, or by the addition of pure cane, beet, or dextrose sugar". Based upon principles of state law pre-emption and statutory construction, this local ordinance would not have to define terms found in Chapter 18B.
The General Assembly has pre-empted the regulation of alcohol in North Carolina. State v. Williams, 283 N.C. 550, 554, 196 S.E.2d 756, 759 (1973). N.C.G.S. § 18B-100 specifically states: "Except as provided in this Chapter, local ordinances establishing different rules on the manufacture, sale, purchase, transportation, possession, consumption or other use of alcoholic beverages … are prohibited." Therefore, any local ordinance regulating alcoholic beverages must explicitly be allowed by Chapter 18B. Because Chapel Hill’s local ordinance was enacted pursuant to N.C.G.S. § 18B-300, it is constrained by that statutory provision to include the use of the terms malt beverage and unfortified wines.
In further support of the above conclusion is the accepted principle of statutory construction that a local ordinance is "subject to the limitations of the enabling act …". Heaton v. City of Charlotte, 277 N.C. 506, 526, 178 S.E.2d 352, 364 (1971) (regarding definition of the term "immediately adjacent"), citing Zopfi v. City of Wilmington, 273 N.C. 430, 160 S.E.2d 325 (1968). Clearly, Chapel Hill’s ordinance is subject to the definition of the term "malt beverage" found in its enabling act, N.C.G.S. § 18B-300.
Next we address whether the Chapel Hill ordinance is void for vagueness because it does not include within the language of the ordinance itself a definition of "malt beverage" or language specifically referencing the statutory definition. Based upon the fact that the ordinance is subject to the limitation imposed by its enabling act, it is not unconstitutionally vague because it fails to define terms clearly defined in Chapter 18B.
The North Carolina Court of Appeals has held that
[t]here is a presumption in favor of constitutionality …. If the statute is susceptible of two interpretations, one constitutional and the other unconstitutional, the former will be adopted…. It is also well established that when a statute is unclear in its meaning, the courts will interpret the statute to give effect to the legislative intent….State v. White, 58 N.C. App. 558, 559, 294 S.E.2d 1,2 (1982)(citations omitted). The Court in White also stated that "[v]oid for vagueness simply means that criminal responsibility should not attach where one could not reasonably understand that his contemplated conduct is proscribed…. The standard is whether the statutory language gives a person of ordinary intelligence fair notice of what is forbidden by the statute." Id. at 563, 294 S.E.2d at 4 (citations omitted).
A local ordinance regulating or prohibiting the possession of malt beverages as proscribed in
N.C.G.S. § 18B-300(c) does not have to define the terms used therein. Because of the preemption of the regulation of alcoholic beverages by state law and the specific allowance within the law for a local ordinance in this instance, the definitions found in Chapter 18B of the General Statutes control. Chapel Hill’s ordinance governing open containers of malt beverages is not void for vagueness for failure to define terms found in Chapter 18B.
We recognize that our opinion is not binding on the district court. Should our opinion not be persuasive to the court, we suggest that the ordinance either be amended or that an appeal be taken from the court’s next dismissal.
Andrew A. Vanore, Jr. Chief Deputy Attorney General
Robin P. Pendergraft
Special Deputy Attorney General